PETITIONER: R. N. NANJUNDAPPA Vs. RESPONDENT: T. THIMMIAH & ANR. DATE OF JUDGMENT08/12/1971 BENCH: RAY, A.N. BENCH: RAY, A.N. PALEKAR, D.G. CITATION: 1972 AIR 1767 1972 SCR (2) 799 1972 SCC (1) 409 CITATOR INFO : R 1979 SC1676 (5) RF 1980 SC2086 (7) F 1984 SC 885 (27) ACT: Civil Service--state Rules providing for 'methods' of recruitment by selection, or competitive examination--Appointment of Class III Officer to Class I post, in the absence of 'rules' of recruitment--Validiry--If could be treated as appointment of 'local candidate'. Constitution of India, 1950, Arts. 14, 16, 162 and 309--Appointment if violative of Arts. 14 and 16--Scope of Arts. 162 and 309. HEADNOTE: In 1957, the respondent, who was working as an Assistant Geologist in Class III Service, was sent on deputation as Vice-Principal of the School of Mines, in the State From 15th February, 1958, he was also doing the duties of the Principal. In September, 1958, the State Government appointed him as officiating Principal but on 3rd April 1959 modified the order and appointed him as temporary Officiating Principal with effect from the 15th February, 1958. On 9th January, 1967, the Mysore Education Department Service Rules were published by which appointment of the respondent, with effect from 15th February, 1958 was regu- larised. The appellant, who was the Principal of a Government Polytechnic, and was in Class 11 Service, contended that the respondent's appointment was in breach of the Mysore State Civil Services (General Recruitment) Rules, 1957, and the Mysore Education Department Services (Technical Education Department Recruitment) Rules, 1964, and offended Arts, 14 and 16 of the Constitution. The High Court held that the respondent was a local candidate within the meaning of the Mysore Government Seniority Rules, 1957, and therefore his appointment could be regularised with effect from any date. Allowing the appeal to this Court, HELD : (1) Rule 3 of the Mysore State Civil Services (General Recruitment) Rules, 1957, which were in force from February 1, 1958, speaks of the method of recruitment to the State Civil Service by competitive examination, or by selection, or by promotion. The respondent's appointment was not by competitive examination nor was it a case of direct recruitment either in the year 1958 or at any time. If it were a case of direct recruitment there would have been advertisements for the post, and candidate would have been selected on merit. [808 E-H] (2)The appointment of the respondent could not be said to be by promotion because, under r. 4 of the 1957 Rules, it should be on the basis of merit and suitability or on the basis of seniority-cum-merit from among persons eligible for promotion. Moreover, the State contended that it was not a case of promotion, but was a case of selection on the basis that the respondent was the only person fit for the post. [806 E-G; 811 C-D] (3)It is true that the rules of recruitment were not made until 1964. Even sothe three'-methods of recruitment are specific. If it is a case of electionit should have been after consulting the Public- Service commission orthe Advisory or Election Committee, or' the ;appointing authority, and should have been made after inviting applications. 'To say that the 800 appellant was the only eligible candidate, is to deny the rights of others to apply. [805 F; 808 E-H] (4)Rule 16 of the 1957 rules provides for relaxation of rules relating to appointment and qualifications, and one of the instances of relaxation is when the Government, for reasons to be recorded in writing, appoints an officer holding a post of equivalent grade by transfer from any other service of the State. But, in the present case, the respondent did not belong to a grade which Could be said to be equivalent, within the meaning of r. 8(1) of the Rules, to that of the Principal of School of Mines. Therefore, it could not be a case of transfer. In fact, the rule was neither available, nor acted on the present case. [806 G-H; 807 A-C] (5)The State Government has no power to make a rule for regular rising an appointment under Art. 309 of the Constitution, since the Article speaks of rules for appointment and general conditions of service, Regu- larisation of appointment by stating that "notwithstanding any rules the appointment is regularised" strikes at the root of existing rules prescribing promotion, selection or competitive examination as methods of recruitment. Therefore the regularisation was in violation of the Article. [808 A-D] Champaklal Chimanlal Shah v. Union of India, [1964] 5 S.C.R. 190 and State of Mysore v. Padmanabhacharya, [1966] 1 S.C.R. 994, referred to. (6)(a) The contention that a rule under Art. 309 for regularisation would itself be a form of recruitment read with reference to the power under Art. 162 is unsound, because regularisation is not a form of appointment. [809 G] (b)In the present case, the regularisation with effect from February 15, 1958, notwithstanding any rules cannot be said to be in exercise of the power under Art. 162. Articles 162 and 309 operate in different areas, and when the Government acted under Art. 309 they cannot be said to have acted also Linder Art. 162 [809 G-H; 810 A-B] (c)If the appointment itself was in infraction of the Rules or in violation of the provisions of the Constitution, the illegality cannot be regularised.. Ratification or regularisation is possible of an act which is within the power and province of the authority and there has been some noncompliance with procedure which does not go to the root of the appointment. Article 162 does not confer either the power of regularisation nor the power to make rules for the recruitment or conditions of service. There may be a rule for person or one post, but rules are meant for recruitment and conditions of service, and not for the purpose of validating illegal appointments or promotions or transfer. [810 B-D; 814 D] B.N. Nagarajan & Ors. v. State of- Mysore & Ors. [1966] 3 S.C.R. 682, followed. (7)(a) The High Court erred in holding that the respondent was a local candidate within the meaning of the 1957 rules. A local candidate is a temporary government servant not appointed regularly as per rules of recruitment to that service. But two government servants cannot be appointed substantively to the same permanent post at the same time except as a temporary measure. The respondent, in the present case, was a permanent government servant and was on deputation having a lien on his post as Assistant Lecturer Geology when he was appointed to officiate as Principal. Therefore, it cannot be said that he was substantively appointed to the post of Principal. If the respondent was appointed as 801 a temporary measure to the post of Principal, it would not therefore be as a local candidate, but as a Government servant appointed to another post as a temporary measure. [810 D-E; 813 A-C] (i)Moreover the orders of appointment as officiating Principal in September 1958 and the modified order in April 1959, state that proposals to fill the post by advertisement through the State Public Service Commission should be forwarded. They show that the respondent was not treated as a local candidate, but was appointed as a temporary measure till proper appointment is made through the State Public Service Commission from persons possessing the necessary qualifications. [811 G-H] (8)When the State Public Service Commission agreed for regularisament ofthe respondent, but only to regularise the appointment to the post of Principal. [813 F-G] (9)The High Court was wrong in holding that the appointment of the respondent did not offend Arts. 14 and 16. Under the 1964-rules the recruitment for the post was by promotion from the cadre of Heads of sections or by direct 'recruitment and Principals of Polytechnics and Heads of sections belonged to a common cadre and should have been considered for the appointment. As the appellant and others were not given equal opportunity and treatment in regard to the appointment, there was discrimination. [814 F-H; 815 A- F] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2357 of
1968.
Appeal by special leave from the judgment and order dated
September 12, 1968 of the Mysore High Court in Writ Petition
No. 473 of 1967.
A. K. Sen, S. S. Javali and M. Veerappa, for the
appellant.
A. R. Somanatha Iyer, 0. P. Malhotra, J. P. Dadachanji
and C. S. Srinivasa Rau, for respondent No. 1.
Bera Reddy and R. H. Dhebar, for respondent No. 2.
The Judgment of the Court was delivered by
Ray, J. This is an appeal by special leave from the
judgement dated 12 September, 1968 of the High Court of
Mysore dismissing by a common judgment a group of petitions.
The appellant challenged the Mysore Education Department
Service Rules dated 9 February 1967 published in the
notification No. ED. 91DGO 58, on 9 February, 1967.
The Rules impeached by the appellant are as follows
“In exercise of the powers conferred by the
proviso to Article 309 of the Constitution of
India, and all
802
other powers enabling him in this behalf, the
Governor of Mysore hereby makes the following
rules, namely :-
1.Title : These rules may be called the
Mysore Education Department Services
(Technical Education Department (Special
Recruitment) Rules, 1967.
2.Provisions relating to regularisation of
appointment of Principal, School of Mines,
Ooragaum, Kolar Gold Fields.
Notwithstanding any rule made under the
proviso to article 309 of the Constitution of
India, or any other rules or Order in force at
any time, Dr. T. Thimmiah, B.Sc. (Hons.) Ph.D.
(Lond.) F.G.S. shall be deemed to have been
regularly appointed as Principal, School of
Mines, Ooragaum, Kolar Gold Fields, with
effect from 15-2-1958.
By order and in the name of
the Governor of Mysore
Sd/- S. N. Sreenath
Under Secretary to Government Education Department”.
The appellant was posted as ‘additional in-charge’ of
Technical Education, Bangalore. There were other petitions
before the Mysore High Court similarly challenging the
aforesaid Service Rule. The petitioners in those cases were
the Principal of the Polytechnic at Mysore; Head of the
Mechanical Engineering Section, C.P.C. Polytechnic, Mysore;
Principal of the Polytechnic, Hassan; and Principal of
B.D.T. College of Engineering, Devangere.
The appellant joined as lecturer in Physics at the
University Department of the Government of Mysore in 1941.
In 1946 the appellant took a post graduate degree in
Chemical Engineering at Madras University. The appellant
was then posted as Lecturer in Chemical Engineering,
Government Engineering College, Bangalore. In 1949 the
appellant was promoted and posted as Superintendent
(Principal), Government Polytechnic, Devangere in the grade
of Rs. 200-20-300. In 1954 the appellant was posted as
Principal, Polytechnic College at Hassan in the grade of Rs.
200-20-300. The appellant was confirmed in the year 1957 in
the grade of Rs. 200-20-300 in Class II with effect from 12
December, 1949. On 1 January, 1957 the pay scale of the
appellant was revised at Rs. 250-600.
The respondent Thimmiah graduated and was appointed through
the Public Service Commission in the year 1951 as an
Assistant Geologist in the Department of Geology in the
Mysore Government in the grade of Rs. 125-10-175.
803
The respondent went to the United Kingdom and returned in
1957 with a Ph.D. in Geology. In the month of July, 1957
the establishment of the School of Mines at Kolar Gold
Fields was sanctioned in the Department of Technical
Education. The respondent who was in 1957 a Lecturer in the
Department of Geology was deputed for appointment is Vice
Principal of the School of Mines at Kolar Gold Fields. On
15 February, 1958 the respondent was asked to perform the
duties of the Principal. On 22 July, 1958 Isaac son who was
the Principal of the School of Mines at Kolar Gold Fields
left. On 25 September, 1958 the respondent was appointed
officiating Principal of the School of Mines on a temporary
basis with effect from 22 July, 1958. On 3 July, 1959 the
respondent was appointed Principal with effect from 15
February, 1958. The Government of India in the year 1959
wrote to the State Government that the respondent did not
possess qualifications and proposed prescribed
qualifications for the- Principal of School of Mines.
Qualifications were proposed by the Director of Technical
Education in the month of August, 1959. In the month of
August, 1960 the respondent was promoted in his parent
Department of Geology as Geologist.
In the year 1962 the appellant made an application under
Article 226 challenging the officiating appointment of the
respondent. The High Court of Mysore on 17 November, 1963
dismissed the appellant’s application as premature, because
the Government was going to frame rules for recruitment for
the Department.
In the month of May, 1964 rules of recruitment were framed
by the Government for the Department of Technical Education.
In the year 1967 Rules were made under Article 309 of the
Constitution regularising the appointment of the respondent
as Principal, School of Mines with effect from 15 February,
1958.
The Kolar Gold Fields, School of Mines was set up in the
month of July, 1957. The respondent was sent in the month
of August, 1957 on deputation for two years as Vice
Principal of the School of Mines. The respondent was then
working as an Assistant Geologist. The then Principal of
the School of Mines was Isaacson. He was employed on a part
time basis on an allowance of Rs. 200 p.m. On 22 July, 1958
when Isaacson left the respondent who was the Vice Principal
had been doing the duties of the Principal since 15
February, 1958. The State Government on 25 September, 1958
appointed the respondent Thimmiah as officiating Principal
with effect from 22 July, 1958 in the grade of Rs. 500-30-
800. On 3 April, 1958 the State Government in modification
of the notification of 25 September, 1958 appointed the
respondent as temporary officiating Principal with effect
from
804
15 February, 1958. The impugned rules regularising the
Appointment of the respondent with effect from 15 February,
1958 came into existence on 9 February, 1967.
The appellant contended that the respondent was governed by
the Mysore Service Regulations, 1943, the Mysore State Civil
Services (General Recruitment) Rules, 1957 as well as the
Mysore Education Department Services (Technical Education
Department) (Recruitment) Rules, 19 4. The appellant also
contended that the respondent was in Class III service, and,
therefore, the impeached regularisation of the respondent’s
appointment was in breach of the aforesaid Rules and
Regulations and offended Articles 14 and 16 of the
Constitution. The contention of the respondent before the
High Court was that the appointment to a civil post could be
made in three ways : one by promotion; second by direct
recruitment; and the third by regularisation of an
appointment which had been initially made irregularly. It
Was also contended in the High Court, though there was no
suggestion in the affidavit or in the return in answer to
the petition, that the respondent was a local candidate in
service, and, therefore, under rule 8 (27A) of the Mysore
Civil Services Rules, 1957 the rules would not apply to the
respondent and the regularisation “,as valid.
An additional argument was advanced in this Court that under
Article 162 of the Constitution regularisation would in
itself be a mode of exercise of power of appointment of the
Executive Government. Regularisation was said to have the
consequence of impressing upon the appointment the quality
of permanence and the elimination of precariousness.
According to the State such an appointment even if made in
the shape of rules under Article 309 could not be attacked
on the ground of being made for one person just as a piece
of legislation could not be attacked on the ground of being
made for a particular person or entity.
The High Court held that the respondent was a local candi-
date within the meaning of Rule 1-A of the Mysore Government
Seniority Rules, 1957 and therefore the appointment of the
respondent could be regularised with effect from any date.
The High Court expressed no opinion on the question of
seniority among the several petitioners inter se. On that
basis the High Court held that there could be a temporary
employment and recognition of a temporary servant as quasi
permanent employee without violating Articles 14 and 16.
The High Court held that the appointment of a local
candidate could not be said to be discriminatory or a denial
of equal opportunity. The High Court also held that when
the respondent was appointed temporarily in 1958 there were
no qualifications prescribed for the post and there were no
cadre and recruitment rules.
805
On 17 August, 1957 when the respondent was sent on depu-
tation as Vice Principal his post was counted as that of a
lecturer. When Issacson left the School of Mines and when
the respondent was asked to be in charge as Principal and
thereafter when the respondent was in the month of
September, 1958 appointed to officiate as Principal which
was Class I service with effect from 15 February, 1958 the
respondent had been on deputation from foreign service and
in the affidavit it was stated that it was Class III service
to which the respondent belonged and the appointment of the
respondent to the post of Principal of the School of Mines
was challenged by the appellant to amount to promotion from
Class III to Class I.
Under rule 57 of the Mysore Civil Service Regulations, 1943
an officer could be sent on deputation on such temporary
duty for the performance of which there is no permanently or
temporarily sanctioned appointment. Deputation however was
not permissible under Rule 57 without the sanction of the
Government.
The question here is whether an officer like the respondent
who was sent on deputation could be said not to be governed
by any rule and be a local candidate as contended for by the
State. At the relevant time in the month of February, 1958
the Mysore State Civil Service (General Recruitment) Rules,
1957 were in existence inasmuch as those rules came into
force on 1 February, 1958. The Mysore State Civil Services
Rules, 1957 defined ‘direct recruitment’, ‘promotion’ and
‘selection’. Direct recruitment would be appointment
otherwise than by promotion or transfer. Promotion would be
appointment of a Government servant from a post, grade of
service or class of service, to a higher post or higher
grade of service or higher class of service. Selection
would be after consulting the Commission or the Advisory or
the Selection Committee, or the appointing Authority. Rule
3 of the Mysore State Civil Services Rules, 1957 speaks of
method of recruitment to the State Civil Service to be by
competitive examination or by selection or by promotion.
Judged by these rules the appointment in the present case
could be said to be only by promotion. Indisputably there
was neither any competitive examination not any selection
nor it was a case of direct recruitment. Sub-clauses (a)
and (b) of Rule 4(3) of the Mysore State Civil Services
Rules, 1957 lay down the restrictions as to recruitment by
promotion. The restrictions are two-fold in sub-clauses (a)
and (b). First, if it :is to a selection post or to a post
to be filled by promotion or by selection of a person on the
basis of merit and suitability in all respects to discharge
the duties of the post it is with due regard to seniority
from among persons eligible for promotion. The second is
recruitment by
806
promotion to a post other than that referred to in sub-
clause (1) by selection of a person on the basis of
seniority-cum-merit, that is seniority subject to the
fitness of the candidate to discharge the duties of the post
from among persons eligible for promotion.
In 1958 the post of the Principal of the School of Mines was
a penurious post. The pay of the Principal was Rs. 500-800
at that time. The respondent was getting a salary of Rs.
165 plus Rs. 75, in the month of February 1958 and his grade
of scale was from Rs. 125-175. The respondent had been
substantively appointed to the post of a lecturer in Geology
from which he was sent on deputation. The respondent under
Rule 17 of the General Rules regarding lien on appointment
and admissibility of allowances could not be appointed
substantively to two or more permanent posts at the same
time except as a temporary measure. Then again under Rule
20(1) of the General Rules regarding lien on appointment the
Government shall suspend the lien of a Government servant on
a permanent post which he holds substantively if he is
appointed in a substantive capacity. In the month of
February, 1958 the respondent was on deputation and having a
lien on post as Assistant Lecturer of Geology when he was
appointed to officiate as Principal, School of Mines, and,
therefore, it could not be said that he was substantively
appointed to the post of a Principal.
The appointment of the respondent as officiating Principal
in the month of February, 1958 could be only by promotion.
The two impediments to the case of recruitment by promotion
have already been noticed in rule 4(3) sub-clauses (a) and
(b) of the Mysore State Civil Services (General Recruitment)
Rules, 1957. Under sub-clause (a) it is to be on the basis
of merit and suitability with due regard to seniority from
among persons eligible for promotion. Under sub-clause (b)
it is to be on the basis of seniority-cum-merit from among
persons eligible for promotion. It is not the case of the
Government that it was a case of promotion because there is
no material to show that merit and suitability in all
respects with due regard to seniority from among persons
eligible for promotion were considered.
The Mysore State Civil Services Rules, 1957 in Rule 16
speaks of relaxation of rules relating to appointment and
qualifications and one of the instances of relaxation is
that the Government may for reasons to be recorded in
writing (a) (i) appoint to a post an officer of the Defence
Services, an All India Service or a Civil Service of the
Union or the Civil Service of any other State and (ii) an
officer holding a post of an equivalent grade, by transfer,
from any other service of the State. Equivalent grade
-fined in the more Civil Services Rules 1957 which came
807
into effect on 10 February, 1958. Rule 8(1) of the Mysore
Civil Services Rules, 1958 speaks of class and grade.
Appointments are said to be in the same ‘Class’ when they
are in the same department, and bear the same designation,
or have, been declared by Government to be in the same,
class. Appointments in the same class are sometimes divided
into ‘grades’ according to pay. The post of Principal
School of Mines was said to be Class 1. It was said that in
the month of February, 1958 there were no classes. But the
respondent did not belong to a grade which could be said to
be equivalent grade to that of the Principal School of
Mines. Therefore it could not be a case of transfer within
the meaning of the aforesaid Rule 16.
The Mysore Technical Education Rules which came into
existence on 5 May, 1964 referred to two classes and the
Principal, School of Mines was in Class I and the Heads or
Principal of Polytechnics were in Class I. In 1964 the post
of Assistant Geologist was in Class III and not identical in
rank. The respondent alleged that he was appointed
temporarily to the post of Principal, School of Mines in
February, 1958 and thereafter he was appointed under Article
162 of the Constitution because of his qualifications. It
will appear from the affidavit evidence that the appellant
in 1957 was Principal of the Government Polytechnic at
Davangere and was in the grade, of Rs. 200-20-300.
The respondent was in 1956 an Assistant Geologist at a
salary of Rs. 165/- in the scale of Rs. 125-10-175. In 1964
the appellant was in Class III under the 1964 Rules as
Principal of Polytechnic whereas the respondent was in the
substantive post of Assistant Geologist which under the 1964
Rules was in Class 111. Therefore when the appointment of
the respondent was attempted to be regularised with effect
from 1958 the respondent was being placed at a position of
advantage.
The appointment of the respondent by promotion or transfer
is inherently indefensible. The respondent was in Class III
service. He was being appointed to Class 1. If it were a
case of promotion persons in the same grade and seniority
and merit were to be considered. The appellant was senior
to the respondent. There were other petitioners before the
High Court who were senior to the respondent. When the
appellant made an application to the Mysore High Court in
the year 1962 the application was dismissed because it was
found to be premature as the Government was preparing the
cadre and recruitment rules. The High Court left it open
and said if and when the appointment was regularised it
would be open to the appellant to take such steps as law
permits.
808
It was contended on behalf of the State that under Article
309 of the Constitution the State has power to make a rule
regularising the appointment. Shelter was taken behind
Article 162 of the Constitution andthe power of the
Government to appoint. No one can deny thepower of the
Government to appoint. If it were a case of direct
appointment or if it were a case of appointment of a
candidateby competitive examination or if it were a case of
appointment by selection recourse to rule under Article 309
for regularisation would not be necessary. Assume that
Rules under Article 309 could be made in respect of appoint-
ment of one man but there are two limitations. Article 309
speaks of rules for appointment and general conditions of
service. Regularisation of appointment by stating that
notwithstanding any rules the appointment is regularised
strikes at the root of the rules and if the effect of the
regularisation is to nullify the operation and effectiveness
of the rules, the rule itself is open to criticism on the
ground that it is in violation of current rules. Therefore
the relevant rules at the material time as to promotion and
appointment are infringed and the impeached rule cannot be
permitted to stand to operate as a regularisation of
appointment of one person in utter defiance of rules
requiring consideration of seniority and merit in the case
of promotion and consideration of appointment by selection
or by competitive examination.
It was contended on behalf of the State that Rule 3 of the
Mysore State Civil Services Rules, 1957 spoke of method of
recruitment to be by competitive examination, or by
selection, or by promotion. The method of recruitment and
qualifications for each State Civil Service were to be set
forth in the rules of recruitment but there were no rules
until the year 1964. In 1964 the rule spoke of the
Principal of School of Mines to be Class I and the method of
recruitment for the Principal of School of Mines was to fill
up the post by promotion from the cadre of Heads of Sections
or by direct recruitment. It was said on behalf of the
respondent that he was the only eligible candidate in 1964,
and, therefore, his appointment was valid. This is opposed
to facts. It is not a case of direct recruitment in the
year 1958 or at any time. The State made rules in the year
1967 to regularise the appointment from the month of
February, 1958. Again, if it were a case of direct
recruitment one Would expect proper materials for the direct
recruitment. There should be advertisements for the post.
Candidates have to be selected. Their respective merits
would have to be considered. To say that the appellant was
the only eligible candidate is to deny the rights of others
to apply for such eligibility tests.
Counsel on behalf of the State relied on the decision of
this Court in Champaklal Chimanlal Shah v. The Union of
India(1)
(1) [1964] 5 S.C.R. 190.
809
and the observations at page 201 of the report : “That the
Government have to employ temporary servants to satisfy the
needs of a particular contingency and such employment would
be perfectly legitimate.” No exception could ordinarily be
taken to such appointment. The appointment in the present
case does not fall under that category. The appointment was
in breach of rules as a case of promotion. It was not a
case of direct recruitment. It was not a case of temporary
appointment. It was not a case of appointment of a local
candidate. This Court in the case of The State of Mysore v.
Padmanabhacharya etc.(1) dealt with a rule under Article 309
to the effect that the respondents in that case having been
invalidly retired should have been validly retired from
service on superannuation. The notification of the
Government under Article 309 was issued on 25 March, 1959
there validating the action taken in retiring the respondent
and others upon their attaining the age of 55 years. The
respondents contended before the High Court that they were
entitled to continue in service upto the age of 58 years and
not to be retired at the age of 55 years in view of an
exception carved out by note 4 to rule 294(1) of the Mysore
Civil Services Regulations. This Court did not express any
opinion as to the power of the Legislature to make a
retrospective provision under Article 309 but the
notification retiring certain persons on superannuation was
struck down by this Court in these words : “We are, of
opinion that this notification cannot be said to be a rule,
regulating the recruitment and conditions of service of
persons appointed to the services and posts in connection
with the affairs of the State. All that the rule does is to
say in so many words that certain persons who had been, in
view of our decision on this point, invalidly retired should
be deemed to have been validly retired from service on
superannuation. It would if given effect contravene Article
311 of the Constitution. Such a rule in our opinion is not
a rule contemplated under the proviso to Article 309”.
The contention on behalf of the State that a rule under
Article 309 for regularisation of the appointment of a
person would be a form of recruitment read with reference to
power under Article 162 is unsound and unacceptable. The
executive has the power to appoint. That power may have its
source in Article 162. In the present case the rule which
regularised the appointment of the respondent with effect
from 15 February, 1958 notwithstanding any rules cannot be
said to be in exercise of power under Article 162. First,
Article 162 does not speak of rules whereas Article 309
speaks of rules. Therefore, the present case touches the
power of the State, to make rules under Article 309 of the
nature impeached here. Secondly, when the Government acted
(1) [1966] 1 S.C.R. 994.
810
under Article 309 the Government cannot be said to have
acted also under Article 162 in the same breath. The two
Articles operate in different areas. Regularisation cannot
be said to be a form of appointment. Counsel on behalf of
the respondent contended that regularisation would mean
conferring the quality of permanence on the appointment
whereas counsel on behalf of the State contended that
regularisation did not mean permanence but that it was a
case of regularisation of the rules under Article 309. Both
the contentions are fallacious. If the appointment itself
is in infraction of the rules or if it is in violation of
the provisions of the Constitution illegality cannot be
regularised. Ratification or regularisation is possible of
an act which is within the power and province of the
authority but there has been some non-compliance with
procedure or manner which does not go to the root of the
appointment. Regularisation cannot be said to be a mode of
recruitment. To accede to such a proposition would be to
introduce a new head of appointment in defiance of rules or
it may have the effect of setting at naught the rules.
In the present case, it was said that the respondent was a
local candidate within the meaning of rule 8(27A) of the
Mysore Civil Services Rules, 1957 which came into effect on
1 March, 1958. A local candidate is defined there as a
local candidate in service meaning a temporary Government
servant not appointed regularly as per rules of recruitment
to that service. When the appointment of a local candidate
would be regularised it would be in consonance with the
rules. A contention was advanced on behalf of the
respondents that Rules 3, 4 and 14 in the Mysore State Civil
Service Rules, 1957 which came into effect on 10 February,
1958 would not apply until rules of recruitment as con-
templated in Rule 3 were brought into existence. In support
of that contention reliance was placed on the decision of
this Court in B. N. Nagarajan Ors. v. State of Mysore &
Ors.(1). In that case a question arose as to the validity of
appointments of 88 Assistant Enginers who were appointed in
October, 1961. It was contended that the appointments there
were to have been in consonance with the Rules which came
into existence in December, 1960. It was held that the
December 1960 Rules were not intended to cover appointments
of persons who had been interviewed and recommended for
appointment by the Public Service Commission in the month of
November, 1960 prior to the making of the rules. It was
also held in that case that the absence of rules would not
take away the power of the executive Government to make
appointments under Article 162 of the Constitution. In the
present case, the contention on behalf of the respondents
that the regularisation was itself a mode of appointment
(1) [1966] 3 S.C.R. 682.
811
under Article 162 of the Constitution is unsound. The Rules
came into existence in the present case in 1964. The
regularisation was made in the year 1967. The
regularisation was made with effect from 1958. Therefore,
the Rules became applicable. The regularisation in the
present case was also bad because even without specific
methods of recruitment appointments could be made only by
selection or promotion or transfer from equivalent grade.
The method of recruitment and qualification for each State
Civil Service was to be setforth in the rules of recruitment
of such service specialty made in that behalf.
It follows that in the present case in the face of rules
which spoke of recruitment to be by competitive examination
or by selection or by promotion, these are the three modes
of appointment. Even if the method of recruitment and
qualifications are not laid down the three modes are
specific. Counsel on behalf of the State stated that the
respondent was not promoted but that it was a case of
selection because the respondent was the only person fit for
that post. A selection would have to be made by inviting
applicants and then selecting them. The State relied on the
affidavit of the Deputy Secretary to the Government that the
respondent was a highly qualified person and there were no
other qualified persons available to fill up the post of
Principal of the School. It was therefore said that the
Government found that the respondent was the only candidate
found suitable and he was therefore selected. The affidavit
does not say that he was selected on the basis that other
candidates were interviewed and that claim of other
candidates were considered. In Nagarajan’s case (supra’)
this Court said that if rules were made the Executive would
have to follow the Rules and the Executive could not under
Article 162 of the Constitution ignore the Rule. Therefore,
in the present case the Executive acted illegally in
regularising the appointment of the respondent Thimmiah.
In the present case, the respondent was appointed tempora-
rily as officiating Principal on 25 September 1958 until
further orders. In foot note I to the letter dated 25
September, 1958 communicating the order it was stated that
the Director of Technical Education was requested to forward
proposals to fill the post by advertisement through Mysore
Public Service Commission. Again on 3 April, 1958 when the
respondent was appointed temporarily as officiating
Principal with effect from 15 February, 1958 until further
orders a similar foot note was given in that letter
communicating the order to the effect that the Director of
Technical Education would forward proposals to fill up the
post by advertisement through Mysore Public Service
Commission. These letters totally repel the suggestion of
the respondent being a local candidate. ‘These letters
contain intrinsic evidence that the appointment was to be
made, ‘by advertisement through Mysore
812
Public Service Commission so that persons who would possess
the necessary qualifications would be able to apply for the
same for consideration.
The case of promotion is totally impermeable in the present
case. There were three classes of services under the Mysore
Civil Services (Classification, Control and Appeal) Rules,
1957. Rule 5 classified the services under four classes.
Class I consisted of gazetted posts with the minimum pay of
not less than Rs. 350 p.m. Class 11 was to consist of
gazetted posts other than those referred to in Class 1.
Class III was to consist of non-gazetted posts of Primary
School teacher, Assistant Inspector of Shops and
Establishments, Compounders, Village Accountants, Bill
Collectors and other posts the pay or maximum pay of which
if on a time scale is more than Rs. 90. Class IV was to
consist of non-gazetted posts classified in the Schedule.
There, were three Schedules. Promotion would have to be
under rule 4 of the Mysore Civil Services (General
Recruitment) Rules, 1957 on the basis of merit and
suitability or on the basis of seniority-cum-merit. Rule 16
of the 1957 General Recruitment Rules speaks of relaxation
of rules relating to appointment and qualifications. The
Government has power to relax any rule and may appoint
persons for reasons to be recorded in writing inter alia to
a post of an equivalent grade by transfer. In the present
case, it was not an appointment by transfer from one post to
a post of an equivalent grade under the rules. The
relaxation under Rule 16 of the Mysore Civil Service
(General Recruitment) Rules, 1957 for a specified period of
the qualifications prescribed for purposes of direct
recruitment of candidates possessing the prescribed
qualifications was neither available nor done in fact in the
present case. Therefore it could not be said here that the
appointment was by promotion because the respondent did not
hold the post of an equivalent grade.
It is said on behalf of the State that the appointment of
the respondent was justified on the following grounds. In
the year 1958 the respondent was appointed on, a temporary
basis. The Government has power to make a temporary
appointment. The respondent was, according to the rules, a
local candidate. A local candidate could be appointed
irrespective of rules. Up to the year 1964 there were no
rules fixed with regard to cadre or appointment. In 1964
when the cadre and recruitment rules were made the
respondent was the only qualified person. There were no
specific rules for regularisation. The Government has power
under Article 162 to regularise appointments. Rules under
Article 309 can be made for one Person. Therefore, the
respondent was validly appointed.
813
The contentions on behalf of the State and the respondent
are unacceptable. A local candidate means a temporary
Government servant not appointed regularly. The respondent
was a permanent Government servant at the material time. He
was already in service. Under the rules in force in the
year 1958 two Government servants cannot be appointed
substantively to the same permanent post at the same time.
A Government servant cannot be appointed substantively
except as a temporary measure to two or more permanent posts
at the same time. Therefore, if the respondent were
appointed as a temporary measure to the post of Principal it
would be not as a local candidate but as a Government
servant appointed to another post as a temporary measure.
This happened in 1958. When the appellant impeached the
appointment of the respondent before the Mysore High Court
in 1962 the State Government stated that the rules had been
framed and forwarded to the Public Service Commission and
the post of the Principal had to be filled up by promotion
from the cadre of Heads of Sections or by direct
recruitment. The qualifications for direct recruitments
were also given. It was also stated before the Mysore High
Court that the matter of regularisation of the respondent in
the post was under consideration and the Public Service
Commission had agreed to the regularisation and the matter
was to be considered by the Government and the decision was
to be given in that behalf. In that context, the Mysore
High Court said that no useful purpose would be served in
pronouncing on the questions raised in the writ petitioN and
if and when the appellant felt aggrieved by such
regularisation it would be open to him to take such steps.
It is in this background that when regularisation was made
in the year 1967 that the appellant came up before the High
Court challenging the regularisation. When it was said
before the Mysore High Court in 1962 that the Public Service
Commission agreed to regularisation it did not mean that the
Public Service Commission agreed to regularise the
appointment of the respondent. All that the Public Service
Commission did was to regularise the appointment to the post
of the Principal. The regularisation by the State of the
appointment is with effect from 1958. This reguularisation
is bad for the following reasons. First, regularisation is
not itself a mode of appointment. Secondly, the modes of
appointments are direct recruitment or selection or pro-
motion or appointing for reasons to be recorded in writing
an officer holding a post of an equivalent grade, by
transfer, from any other service of the, State. The
Government did not contend-, it to be a case of promotion.
If it were a case of promotion it would not be valid because
it would be a promotion not on the basis of seniority-cum-
merit but a promotion of some one
814
who was in Class III to Class I. Even with regard to
appointment under rule 16 by transfer of a person holding an
equivalent grade the appointment would be offending the
rules because it would not be transfer from an equivalent
grade. Again, merit and seniority could not be disregarded
because the respondent was not in the same class as the
Principal of the School of Mines. The pay of the Principal
was Rs. 500-800 whereas the respondent was getting a salary
of Rs. 165 in the grade of Rs. 125-165 plus an allowance of
Rs. 75.
The contention of the State that there were no rules and
that the Government was free to appoint the respondent is
wrong. There were 1957 rules which spoke of appointment by
competitive examination or by selection or by promotion.
Even if specific rules of recruitment for such services were
not made the rule as to-appointment by competitive
examination or selection or by promotion was there. Article
162 does not confer power of regularisation. Article 162
does not confer power on the Government to make rules for
the recruitment or conditions of service. There can be rule
for one person or one post but rules are meant for
recruitment and conditions of service. Rules are not for
the purpose of validating an illegal appointment or for
making appointments or promotions or transfer. Rules under
Article 309 are for the purpose of laying down the
conditions of service and recruitment. Therefore, the
regularisation by way of rules under Article 309 in the
present case by stating that notwithstanding anything in the
rules the appointment of the respondent was being
regularised was in itself violation of the rules as to
appointment and as to cadre and also as to the proper
selection. if the respondent were to be appointed by direct
recruitment, there should have been advertisements. Then
others would have the opportunity of applying. That would
be proper selection.
Counsel on behalf of the appellant contended that Articles
14 and 16 of the Constitution were infringed by the impugned
regularisation by rules under Article 309 of the
Constitution inasmuch as the appellant and the other
petitioners in the High Court were not given equal
opportunity and treatment in regard to the appointment and
there was also discrimination. It was said on, behalf of
the respondent that the appellant did not possess
qualifications prescribed by the 1964 Rules. The appellant
disputed that contention. ‘Me appellant and the respondent
belonged to the same class of service.
The Mysore Education Department Services Technical Education
Department) (Recruitment) Rules, 1964 provided that the
method of recruitment for the post of Principal, School of
Mines was by, promotion from the cadre of Heads of Sections
or by direct recruitment. The minimum qualifications for
direct
815
recruitment were age limit of 40 years and M.Sc. Degree in
applied Geology with five years experience in Mining. The
appointment of the respondent was not by direct recruitment
at any stage. The appointment of the respondent was sought
to be justified by the State and the respondent first on the
ground of promotion and second on the ground of the
respondent possessing the qualification. The appellant
contended that the appellant was the Principal of the
Polytechnics since the year 1949. The appellant also
contended that the appellant was senior to the respondent.
The Principals of Polytechnics and the Heads of sections,
according to the contention of the appellant, belonged to
the common cadre. Therefore, the appellant alleged that the
appellant was eligible for promotion under the 1964 Rules.
The case of promotion could not be considered by considering
only the respondent. Again, the impeached rules do not show
that it was a case of promotion but that it was a case of
regularisation of an appointment with effect from the year
1958.
If it was the case of selection the appellant and the
respondent and others should have been considered. The 1964
Rules prescribed qualifications for the first time. The
1964 Rules provided appointment by promotion or by direct
recruitment. The appellant alleged eligibility. The
appellant was Head of a Section. The respondent was also a
Head of a Section. They both belonged to the same cadre.
Therefore, the impugned rule affects the appellant not only
in regard to his eligibility but also his seniority.
The High Court was wrong in holding that the appointment of
the respondents was defensible as a local candidate and
therefore the appointment did not offend Article 14 and 16
of the Constitution.
For these reasons, the judgment of the High Court is set
aside. The appeal is allowed. The impeded Rules dated 9
February, 1967 published in the notification No. ED.91DGO58
are declared to be void. There will be no order as to
costs.
V.P.S. Appeal allowed.
816